Dismissal As An Improper Remedy In Guam
While it is true that 25.30 is silent as to what remedy should result and that other code sections do address the issue of when cases should be dismissed and that those sections do not mention 25.30, this issue was previously addressed in Palomo and reasoned as follows.
In Palomo, the court noted the disfavoring of dismissals with prejudice. Palomo, 1998 Guam 12 at P 17. However, "in the absence of other remedies, courts are able to fashion procedural rules they determine fair and just when 'rights would be lost or the court would be unable to function.'" Id. at
Although dismissal without prejudice was an option for this court's consideration, and trial courts had previously imposed such sanctions upon the government in other cases, this court viewed such a remedy as ineffective. Id. at P 16.
Characterizing 25.30 as a de facto statute of limitations, the court interpreted 25.30 as a bar to prosecution, as would a failure to commence prosecution under 10.20 and 10.30. As to the issue of prejudice, this court also addressed that argument in Palomo. the court opined as follows:
"The court is mindful of the fact that case law exists in which courts have addressed the issue of dismissals with prejudice as opposed to dismissals without prejudice. Because this situation involves a statutory bar to re-prosecution, a showing of prejudice or any other factors which support dismissal with prejudice are unnecessary." Id. at n.8.
In Palomo, the court also considered the findings of the trial court wherein the trial court noted that defendants would suffer prejudice in terms of the lengthy delay in commencement of prosecution leading to the absence of witnesses, the loss of memory and the anguish in appearing at court on the date of the notice to appear, not finding themselves on the calendar and being told to go home, then living in the belief that the threat of prosecution was eliminated. These are all similar arguments which the defendants in these cases also allege.
The People argue that mandamus is the proper remedy for a defendant-- that somehow it becomes the responsibility of a defendant to petition this court to order the government to commence prosecution against himself. Mandamus is not a reasonable remedy for defendants.
In fact more prejudice will result in causing a defendant to have to file a petition on his own behalf or hire an attorney to do so for the sole purpose of placing himself in a position to be prosecuted and possibly convicted. the responsibility is then shifted from the People to prove a case against a defendant to the defendant having to instigate an action against himself.
As previously stated, the difference between the situation where 25.30 operates is that a suspect is readily available. There is no additional time necessary to investigate in order to even find a suspect. Additionally, this court previously alluded to the fact that it is within the purview of the Legislature to make statutory changes to an ill-conceived statutory scheme.